Quillian v. Equitable Life Assur. Soc. Of The United States, 27808.

• Decision Date: 25 November 1939
• Docket Number: No. 27808.,27808.
• Citation: 6 S.E.2d 108
• Parties: QUILLIAN. v. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES.
• Court: Georgia Court of Appeals

6 S.E.2d 108

QUILLIAN.

v.EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES.

No. 27808.

Court of Appeals of Georgia, Division No. 2.

Nov. 25, 1939.

Syllabus by the Court.

1. Where the language in an insurance policy fixing the extent of the liability of the insurer is plain and without ambiguity and but one reasonable construction is possible, the courts may expound the contract as made.

2. Thus construed, under the provisions of the policy, the insurer only contracted to pay to the insured in the event he was totally disabled as a result of a disease and confinement to the house, the weekly indemnity provided for in the policy for a period of not more than 200 weeks.

3. The doctrine of waiver and estoppel are not to be so extended as to make a new contract, or to radically change the terms of a policy of insurance so as to cover additional subject matter, or causes of loss, or causes of loss expressly excluded from the coverage of the policy. Neither waiver nor estoppel can be used to create a liability not created by the contract and never assumed by the insurer under the terms of the policy.

4. Where a policy of sick and accident insurance provided for the payment of weekly accident benefits so long as the insured was totally disabled, and provided for the payment of weekly benefits for total disability resulting from disease for not more than 200 weeks, the act of the insurer in sending to the trustee of the insured a regular premium notice, after remitting to him the last of the 200 weekly benefits accruing because of his total disability of the insured resulting from disease, and so informing him, pursuant to which the trustee paid the premium, did not have the effect of waiving the limited liability of the insurer for total disability resulting from disease so as to make it liable for more than 200 weeks in-demnity for such total disability, nor was the insurer thereby estopped from setting up, in a suit by the trustee for weekly indemnity in excess of the 200 weeks' limitation, that it had paid to the insured and his trustee the 200 weeks' indemnity for total disability resulting from disease, and therefore was not liable under the policy for any additional weekly benefits for total disability resulting from disease. The policy still remained in force as to disability resulting from accident, as therein provided for.

Error from Civil Court, Fulton County; Ralph McClelland, Judge.

Action by R. R. Quillian, trustee, against the Equitable Life Assurance Society of the United States, on an accident and illness disability policy. To review a judgment for defendant, plaintiff brings error.

Affirmed.

Evins, Quillian & Evins and Winsor Letton, all of Atlanta, for plaintiff in error.

MacDougald, Troutman & Arkwright, Dudley Cook, William H. Schroder, Jr., and Robert Sams, all of Atlanta, for defendant in error.

STEPHENS, Presiding Judge.

Ralph R. Quillian, as trustee, sued the Equitable Life Assurance Society of the United States. The petition set out in substance the following: On December 5, 1919, the Assurance Society issued its policy of accident and illness disability insurance to Dr. Garnett W. Quillian, which policy provided for the payment to the insured of a weekly indemnity of $125 for a total disability resulting from an accident or from disease. Pertinent portions of the policy are as follows: "Equitable Life Assurance Society of the United States hereby insures the person named as applicant in the copy of application for this policy, endorsed hereon, or attached hereto, subject to the provisions, conditions and limitations herein contained, against loss resulting directly and independently of all other causes, from bodily injuries effected during the term of this policy solely through external, violent and accidental means, and against disability from disease, contracted during the term of this policy as follows: Part I: If such injuries shall wholly and continuously disable the insured from date of accident and prevent him from performing any and every duty pertaining to his occupation, and dur ing the period of such continuous disability but within two hundred weeks from date of accident, shall result in death, or within ninety days from date of accident, irrespective of total disability, result in like manner in death, the Society, upon surrender of this policy properly released, will pay the principal sum in addition weekly indemnity as provided in Part II to the date of death. Part II A: If such injuries shall wholly and continuously disable the Insured from date of accident and prevent him from performing any and every duty pertaining to his occupation, the Society will pay for the period of such continuous disability but not exceeding two hundred consecutive weeks the weekly indemnity hereinafter specified. After the payment of weekly indemnity for two hundred weeks as aforesaid the Society will continue the payment of weekly indemnity of the same amount thereafter so long as the Insured shall be wholly and continuously disabled by such injuries from engaging in any occupation or employment for wage or profit. B: Or, if such injuries shall continuously disable the Insured from date of accident and prevent him from performing one or more important daily duties pertaining to his occupation, or for like continuous disability following total disability, the Society will pay for the period of such disability, but not exceeding twenty-six consecutive weeks, a weekly indemnity of one-half of the amount payable per week of total disability. Part III A: If such disease shall wholly and continuously disable the Insured and prevent him from performing any and every duty pertaining to his occupation and shall confine him to the house, the Society will pay the weekly indemnity hereinafter specified and within the limit hereinafter named, for the period of such confinement to the house. B: Or, if such disease shall wholly and continuously disable the Insured and prevent him from performing any and every duty pertaining to his occupation but shall not confine him to the house, the Society will pay weekly indemnity of one-half the amount hereinafter specified and within the limit hereinafter named, for the period of such disability, whether preceded by a period of confinement to the house or not. Indemnity under Part III, subdivisions A and B. for confining or non-confining disability, singly or combined, shall be payable for not exceeding two hundred weeks, in the aggregate during the currency of this policy."

Thereafter the insured became totally disabled as a result of disease, and the in-surer paid to the insured the specified weekly indemnity for 200 weeks, the payments after April,...